Michael Williams Case Certified For Supreme Court Review

WASHINGTON, D.C. – According to a posting on SCOTUSBlog.com, the case of U.S. v. Michael Williams has been accepted for argument by the U.S. Supreme Court. The argument will take place on Oct. 30, 2007.

The case involves 18 U.S.C. 2252A(a)(3)(B), a provision enacted in the PROTECT Act of 2003, which provides that anyone who knowingly "advertises, promotes, presents, distributes, or solicits ...  any material or purported material in a manner that reflects the belief, or that is intended to cause another to believe, that the material or purported material" contains illegal child pornography (i.e., "an obscene visual depiction of a minor engaging in sexually explicit conduct" or "a visual depiction of an actual minor engaging in sexually explicit conduct") has committed a crime.

Those with long memories may recall that the charges here appear eerily similar to the concepts litigated in Free Speech Coalition v. Ashcroft back in 2002, where the Supreme Court removed from the law – specifically, the Child Pornography Prevention Act (CPPA) – language that criminalized depictions that "appeared to be" of minors engaged in sexually explicit conduct, or were advertised so as to "convey the impression" that the material contained such depictions. And indeed, Sec. 2252A(a)(3)(B) was enacted in the wake of that decision by the Republican-dominated Congress.

"The Court explained that nonobscene depictions of sexually explicit conduct could be banned consistent with the First Amendment only if they involved real children," explains the government's petition for writ of certiorari to the Supreme Court, "because only the need to protect real children from sexual abuse could justify dispensing with the requirement that material be shown to be obscene before it can be prohibited."

What Congress did with the PROTECT Act was to reenact a section which criminalized the act of "pandering" material that, while not actual child porn, appears to offer such material for sale as long as it's clear that it is the seller's intent to offer such material. In a sense, it's a sort of "fraudulent advertising" statute, since the material itself is not child porn, but is being sold as such, and it is the seller's intent to fool potential purchasers into thinking that it is child porn.

In Congress own words, "[T]his provision prohibits an individual from offering to distribute anything that he specifically intends to cause a recipient to believe would be actual or obscene child pornography.  It likewise prohibits an individual from soliciting what he believes to be actual or obscene child pornography."

Included with the new law were 15 legislative findings explaining its reasoning for enacting the provision, most of which track the arguments made by the Solicitor General in Free Speech v. Ashcroft as to why the Supreme Court should uphold the challenged CPPA sections.

What is most interesting is that the case arises out of a situation involving actual child pornography. Williams was caught hyperlinking to actual child porn – "The children in the images were nude and were displaying their genitals, engaging in sexually explicit conduct, or both." – and pleaded guilty to Sec. 2252A(a)(3)(B) while reserving the right to challenge its constitutionality. The Eleventh Circuit Court of Appeals overturned the conviction.

"In so doing, the court reasoned that Section 2252A(a)(3)(B) was 'problematic' for three reasons," the government's petition says. "First, because the 'pandered child pornography need only be "purported"' to be covered by the statute, the court was concerned that the statute sweeps in material that either does not in fact exist or that does not satisfy the legal definition of child pornography. Second, in the court's view, the provision bans protected speech in the form of 'the description or advocacy of illegal acts' in circumstances that do not rise to the level of 'immediate incitement.' Third, the court found 'particularly objectionable the criminalization of speech that "reflects the belief" that materials' are illegal child pornography because, in the court's view, the provision punishes 'a defendant's beliefs that simulated depictions of children are real or that innocent depictions of children are salacious.' As the court understood Section 2252A(a)(3)(B), the intent to traffic in illegal pornography 'only applies to one portion of the provision — promoting material in a manner "that is intended to cause another to believe" it is illicit.' ... Accordingly, the court concluded that Section 2252A(a)(3)(B) 'abridges the freedom to engage in a substantial amount of lawful speech in relation to its legitimate sweep,' and held that it was unconstitutionally overbroad."

The government, of course, disagrees with that entire analysis, and the remainder of its petition is taken up with the government's reasons for its position which, without going into a full analysis here, repeats many of the government's pro-CPPA arguments and essentially tries to target the "pandering" aspect of the law and distinguish it from the Supreme Court's prohibition of the CPPA section which defined "child pornography" to include a visual depiction that "advertised, promoted, presented, described, or distributed in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct."